Snowden lawyer: Bill of Rights was meant to make government’s job “more difficult”

Ars Q&A: We sit down with Ben Wizner of the American Civil Liberties Union.

DAVIS, Calif.—Ben Wizner, a top attorney at the American Civil Liberties Union, is probably best known for being one of the lawyers representing Ed Snowden, the former National Security Agency contractor.

On Tuesday, he told Ars that representing the world's most famous whistleblower has consumed a substantial portion of his professional life over the last 2.5 years. But he framed his passion for civil liberties and fighting surveillance as part of a larger struggle that continues to play out as to the proper balance between not only surveillance and privacy but also between surveillance and democracy itself.

Wizner was in this college town outside Sacramento to speak at the University of California, Davis law school as part of an ongoing public lecture series on surveillance. (Full disclosure: yours truly spoke as part of the same series last year.) In a 30-minute talk followed by questions from an audience primarily made up of law students, Wizner outlined a history of surveillance in America, going back to the 1971 Citizens' Commission to Investigate the FBI and extending through to the Snowden-era NSA.

"This, to me, is what's so frustrating about the current debate between civil liberties and state security," Wizner said during the lecture. "It's become standard to approach the debate as if our challenge is to set the dial at precisely the right place that most efficiently maximizes both values. But that ignores that the framers of the Constitution already put their thumbs on the scale. And for good reason. There's a good reason why, in the 4th Amendment, suspicion of wrongdoing comes before search. And it's not only because of the presumption that we should generally be left alone—but because of the danger that a government, with enough data about any of us, can find some basis for being suspicious. 'Show me the man, and I will show you the crime,' said Stalin's secret police chief."

Ars had a chance to sit down with him prior to the talk and touch on a range of surveillance-related topics, including the ongoing case in San Bernardino, Snowden, and the best way to think about future dystopias. What follows is the transcript of our conversation that has been lightly edited for clarity and brevity.

Ars: Unlike prior cases, I feel like what’s different about the case in San Bernardino touches on the population as a whole, simply because a lot of people inherently understand: I have a smartphone, and I may or may not want the government to be able to have access to my stuff.

Further Reading

Ben Wizner: I’m not surprised when I see polls that say that Apple should turn over the information to the FBI. What our community has failed to do effectively is to change the framing, so that people understand that security isn’t on one side and rights on the other in this kind of dispute. But that actually security is on both sides—different kinds of security.

The reason why Apple mainly objects to this kind of order is not because of the constitutional rights of its customers but because it is going to make vulnerable their systems in ways that will be exploited by others. I have been urging colleagues to respond any time anybody asks about FBI and San Bernardino to say: the real conversation is about China wanting to unlock the phone of a US Embassy employee who they suspect is a CIA agent and don’t we want Apple to be able to say they can’t do that.

Don’t we want Apple to be able to say that they can’t help China track the communications of dissidents or other repressive regimes? And it’s exactly the same question if you move it from one place to another—I think people’s intuitions might flip. So long as the focus is on a terrorism investigation in the US, I think it’s going to be hard to get high levels of support for what Apple is doing.

I think that’s true.

But what’s amazing to watch is how much the government is essentially contriving test case litigation. This is the kind of thing that, candidly, groups like the ACLU do. We pick our ideal plaintiffs, we find our moment, and we present the case in a way that is most advantageous to the right we’re trying to uphold. But I don’t know that I’ve ever seen the government be this transparent.

It was reported this week that a week before the dispute went public the government recruited amicus counsel for the San Bernardino victims so that they could participate in this litigation. And if you see the short piece that FBI Director Comey wrote on Lawfare, which is basically about looking the victims in the eye, it’s so emotional and manipulative, and it doesn’t address any of the core arguments against what the FBI is saying.

But do any of the victims’ statements mean anything, legally speaking?

Further Reading

Everyone in this debate recognizes that the magistrate judge is only one decision maker here. And there is a much larger battle for hearts and minds that is taking place outside of that courtroom. And it’s not just the hearts and minds of the public. We’ve seen the battles that have been taking place inside the Obama administration.

Remember over the summer when TheWashington Post obtained an e-mail from Bob Litt saying: "we may have lost this round, in the administration, of crypto wars, but let’s stay ready, and if there’s another attack, and we can show some link to encryption, let’s live to fight another day?" And sure enough as soon as the Paris terrorist attacks took place, the intelligence community was putting out there that the terrorists were communicating with encrypted phones with the suggestion that if they hadn’t been, this attack could have been prevented. This really is the government recognizing that, over time, encryption is going to be an obstacle to certain kinds of investigations—it will. There’s no question about that. And then finding the most emotionally resonant battlefield on which to have this skirmish.

But an amicus from a deceased person’s relative, does that carry any water legally?

It just depends. If you follow amicus practice in the Supreme Court, it’s not at all uncommon for groups of people to have an interest in the case but might not have any legal expertise to form. In the Texas abortion case that is before the Supreme Court, there is a courageous brief filed by women lawyers who themselves had abortions and how that affected their life and their careers. So does it carry legal weight? Who's to say? But it certainly raises the stakes for the judges that are being asked to adjudicate the dispute.

Are you aware of a case that compels a physical lock maker or safe maker to comply with the government?

What did you make of the The Guardian’s editorial yesterday? The Guardian tried to be Solomonic and say that no right is absolute. And this particular request may be reasonable.

I think the debate of “is this request reasonable” in isolation is a different question than “if you allow this case to go forward, as the government wants, then what does that then spawn in terms of other cases?”

Right. And even this week you have to think that the FBI is doing a facepalm when they see Cyrus Vance’s interviews when he’s saying that he’s sitting on 170 phones that he wants Apple to unlock and he’s just waiting for the resolution in this case.

I imagine every district attorney in the country has that on their minds.

Not just in the country. That’s the key point. If the FBI were really honest that this was something that they only wanted to do in extraordinary circumstances, in very rare occasions, it seems to me that the consensus in the tech community is that it’s achievable if not cheap. And that if they brought in the NSA—and here there’s no 4th Amendment question, it’s the government’s phone—and asked them to engineer a solution, they’d be able to do it. They might not have the resources to be able to do it 170 times a week in New York. But they certainly could use targeted hacking rather than company conscription to achieve it in this case. And I think that they have not done that. And the questions that people should be really asking them is: have you asked the NSA for assistance?

I actually did send that question to the FBI yesterday. I haven’t gotten an answer.

But the fact that they haven’t done that yet just shows how much they’re concerned with the precedent than with the real phone. That is my real takeaway right here. Is that the FBI is trying to get the precedent, not the contents of this phone.

What would stop them from doing both?

Because they have to make a representation under the All Writs Act to the court that they don’t have alternative means. Part of the analysis is how burdensome is this? And in analyzing how burdensome it is, if Apple could say to the court: look the FBI could easily get in this other way rather than forcing us to write this code, that would bear on the statutory analysis and I would say on the constitutional analysis. If the FBI is able to get in with NSA assistance, what basis do they have for compelling Apple into doing something that it doesn’t want to do? That’s why people like Snowden and Soghoian and others have been saying needs to be asked of the FBI: has the NSA said they can’t help you?